The federal government is sticking to its guns and claiming that some violations of your rights are so super-secret that the government can't be sued for them. Specifically, if government agents listened in on your communications without a warrant, say federal lawyers, you shouldn't be allowed to seek redress in the courts bcause the U.S. government is protected against legal action by sovereign immunity. Even better, Congress is poised to reauthorize a law which explicitly legalizes such official intrusion.
A federal appeals court appeared troubled Friday by the Obama administration's arguments that the government could break domestic spying laws without fear of being sued — and that the government's argument might be correct, due to an oversight by Congress.
A two-judge panel of the 9th U.S. Circuit Court of Appeals heard an hour of oral arguments here by the government and a lawyer for two attorneys whom a federal judge concluded had been wiretapped illegally without warrants by the government.
Note that the courts have already found the wiretapping in question to be illegal. The argument is whether the federal government can be held accountable for its actions. The federal government says "no."
With all of this talk of secrecy and national security in place, the court win was a miracle of official incompetence. It came about only because the feds accidentally mailed two attorneys a classified document revealing that their conversations had been wiretapped. Such warrantless wiretaps were illegal at the time, but were later permitted by a 2008 amendment to the Foreign Intelligence Surveillance Act supported by, among others, then-Senator Barack Obama.
That amendment is up for reauthorization right now.
But if warrantless wiretaps were illegal at the time the plaintiffs were snooped upon, why the trouble with the lawsuit?
Judge Hawkins noted that the FISA law spells out that those who were illegally spied upon may seek monetary damages. But if Congress did not intend for the government to be sued, "it would make the remedy illusory," Hawkins said.
And that's the federal government's argument.
Justice Department attorney Douglas Letter told Judge Michael Daly Hawkins and M. Margaret McKeown, both President Bill Clinton appointees, that they should dismiss the case outright because the government is immune from being sued for breaching the Foreign Intelligence Surveillance Act under a concept known as sovereign immunity.
"We think the simplest way here is the sovereign immunity argument," Letter told the panel. He added that the aggrieved lawyers could sue individual government officials. But under that scenario, the government would declare the issue a state secret and effectively foreclose litigation.
"I'm trying to understand the government's overall position," Hawkins said. "The government's position is you can't sue the government, you can sue anybody else, but who those people are might be a state secret."
"Correct, your honor," Letter said moments later.
Letter also insisted that individual federal officials shouldn't be sued because "This is just wrong to do this to a federal official." If that sounds petty, the argument actually goes farther. EFF elaborates:
After a question from one judge, the government admitted to the Court that it would then invoke the "state secrets" privilege to stop even that case and also raised the specter of other immunities that would then apply to protect the individual defendants. The Justice Department essentially told the Court, "heads we win, tails they lose."
The federal government's overall argument is that there should be no recourse through the courts whatsoever if your private conversations are intercepted in the name of national security.
The Ninth Circuit judges may, ultimately, reject the federal government's arguments. So might another court — the U.S. Supreme Court is set to consider the constitutionality of the FISA amendments under which the feds are now conducting their snooping.